What is privacy? As job-seekers are judged by their tweets and Facebook posts, uncertainty abounds

Dave Clarke, founder of AuthenticMatters in Old City, googles job candidates. We're not digging for dirt or hunting for drunken photos but if those pop up, it tells me that the candidate doesn't understand the Web. (APRIL SAUL / Staff Photographer)

By Lini S. Kadaba, FOR THE INQUIRER

Posted: May 03, 2012

When Dave Clarke wants to fill a position at AuthenticMatters in Old City, he sifts through the stack of resumes and looks up candidates on Google.

He expects a presence online, he says, especially considering the company’s work — digital strategy and communications consultancy. “That’s your online resume,” AuthenticMatters’ founder says of tweets, blogs, and status updates. “It’s not what you attach to an e-mail.

“We’re not digging for dirt or hunting for drunken photos or anything,” he continues. “But hey, if those pop up, it tells me that the candidate doesn’t understand data, or frankly, the Web in general.”

Sometimes, what an employer finds can send a candidate straight to the reject pile. Job offers — and jobs — have been lost over Facebook photos that show misbehavior, or remarks better left untweeted. There’s even a new term for it: Facebook fired.

As employers increasingly use social media searches — Google, LinkedIn, Twitter — to screen potential hires, privacy experts, as well as civil liberties proponents and politicians, are questioning the practice. At the same time, some employers consider a search a necessary double check of information — basic due diligence.

“There’s a lot of moving parts and changes happening very rapidly,” says Eric Patton, an assistant professor of management at St. Joseph’s University in Philadelphia. “There’s a lot of debate around this entire topic about what’s appropriate to look up and what’s appropriate to use. This is something that’s not going to go away. It’s going to get more and more complicated as time goes by.”

In recent months, politicians on both sides of the aisle have expressed concern over reports that employers are demanding Facebook passwords to look at private profiles of prospective job candidates. Proposed legislation that would ban the practice is under consideration.

“As we begin to live parallel lives on the Web, our privacy rights are slipping away,” argues social media and privacy expert Lori Andrews in her recent book I Know Who You Are and I Saw What You Did: Social Networks and the Death of Privacy.

In the infamous “Cisco Fatty” case that Andrews cites, a college student who landed a summer job with multinational Cisco Systems tweeted about her good fortune, saying in part, “Now I have to weigh the utility of a fatty paycheck against the daily commute to San Jose and hating the work.” Unfortunately for her, a Cisco associate saw those 140 or fewer characters and asked for her hiring manager’s name. The exchange went viral and reportedly the woman’s offer was rescinded.

According to a new ExecuNet survey of 313 recruiters, about half of the respondents eliminated candidates based on information gleaned from Internet search engines. Information uncovered included DWI convictions, unethical work practices, and blog posts that showed poor judgment, says Robyn Greenspan, editor in chief of the executive business network, based in Norwalk, Conn.

Marc Bourne is vice president and cofounder of Know It All Intelligence Group, a Bensalem company that performs employment background screenings for employers. Most of his clients stick with the traditional review of public records. But a growing number want a social media hunt. He says the best protection against a poor online image is the privacy setting. “You’ll have nothing to worry about,” he says.

What about prospective employers who request passwords? Bourne and others say that such stories are rare occurrences that grab the headlines. Employers interviewed for this story said they would never make such a demand.

“I think that’s a little overboard,” says David Neff, president of Neff Associates, a PR business in Philadelphia. “I respect the privacy of other people. As an employer, there’s a certain amount of goodwill.”

In addition, employers appear to have a like/unlike relationship with online searches, preferring a social media survey to a Google look-up.

An October 2011 Society for Human Resource Management (SHRM) survey of more than 500 of its members involved in recruiting found that about 18 percent use social network searches to screen candidates — up five percentage points from a 2008 survey on the same topic. However, only about one-fourth of the recruiters looked up a prospective employee on Google or another search engine — a decrease from the one-third who reported this activity in the earlier survey.

Two-thirds of the organizations that do not scour social media during the hiring process worried about legal exposure if they discovered protected information, such as age, disability, or religious affiliation. They also questioned the accuracy of online data, and relevance to work-related performance. One-third had concerns over the job candidate’s privacy.

Those results echo Andrews’ concerns. The law professor and director of the Institute for Science, Law and Technology at the Illinois Institute of Technology in Chicago calls it “Web-lining,” drawing a parallel with the illegal practice of redlining by banks. “Our private information collected on the Web can lead to Web-lining, where negative decisions are made about us that are based on our digital self,” she says. “The online self is becoming more important than the off-line self.”

Ashley Payne, a Georgia high school teacher, was asked to resign — or be suspended — after the principal became aware of a Facebook photo that showed her on vacation in Ireland drinking a glass of Guinness, as well as a post in which she used an expletive. No matter that her page was private, that she had not friended any of her students, or that she was not doing anything illegal.

In Finland, employers are banned from Googling applicants. The case that gave rise to the rule involved an employer who refused to hire an applicant after discovering he had participated in a mental health conference.

“Rejecting someone because of a potential mental health problem is bad enough,” Andrews writes in her book, “but the applicant didn’t have such a problem — he had attended the conference as a patient’s representative. The employer had jumped to an incorrect conclusion based on data from the Web.”

Andrews has proposed a Social Network Constitution. In the document she drafted, she calls for certain guarantees: the “right to connect,” the right to free speech, the right to privacy of thoughts, and the “right to control one’s image.”

“I think what people post to social network pages should be considered private,” she says. “They might post about sexuality, relationships, political beliefs, illness. The design gives us an expectation of privacy. … It should be non-accessible to employers and schools.”

Robert Sprague disagrees. The associate professor of business law at the University of Wyoming, who studies workplace privacy and technology, says that “anything you post online is fair game. Our privacy laws are essentially binary. It’s either private, or it’s not. If people can see it, whether they do or not, it’s not private.”

The debate often comes down to the question: What is privacy?

“Is it really private if you have 300 friends?” he asks of a Facebook post. “Where do you draw the line? Is it three, 30, or 300?”

Employers also argue that they have a right — even an obligation — to make sure employees are reliable and competent.

“People’s individual behavior can legitimately be brought up in a job search,” Patton of St. Joe’s says. “Courts will usually side with companies if they can make a good argument why they rescinded an offer, if there’s a good business reason.”

Ted Scofield, chief operating officer and general counsel at Icebreaker Entertainment in New York City, often hires graphic artists. If a candidate is not an obvious fit based on his or her resume, Scofield says that “I do what we all do. Google search. … There have been a few I have Googled and found out things I might qualify as unsavory.”

One applicant had been arrested for graffiti. Another had mischaracterized his artistic style. Scofield said he is less concerned about the drinking-on-spring-break photo. “We’ve all done those things,” he said. “It’s more about honesty and accuracy.”